Access to criminal justice and the Rohingya refugees

More than a million Rohingyas are living in the refugee camps in Southern Bangladesh who are not only deprived of citizenship but also access to justice. Labeled as "Forcibly Displaced Myanmar Nationals" (FDMNs), they are, in practice, deprived of the state's legal protection, and instead governed by an unregulated parallel justice system that provides little legal recourse to the refugees, particularly women and the marginalised ones. In absence of a formal 'refugee' status granted by Bangladesh, Rohingyas find themselves in the grey zone of the law, where they are neither citizens nor refugees and, therefore, are not as such visible to the formal courts.

The crisis is not only humanitarian but also a constitutional one. The equal protection of law, and protection in respect of trial and punishment, as articulated in Articles 31 and 35 of the Constitution extends to every person within Bangladesh. Citizens are not the only people endowed with these rights. In Abdul Latif Mirza v. Bangladesh (1979), the Supreme Court affirmed the universal character of these fundamental rights. But in practice, such guarantees are not translated into reality in the camps. Rohingyas cannot go to the police to submit complaints, nor can they appear in the court or request legal assistance. Instead, their complaints, be they related to robbery, domestic abuse, or gun violence, are arbitrated by non-judicial actors and local power brokers (e.g. camp leaders, religious leaders and some NGOs) with no professional training or responsibility.

It should be noted that Bangladesh does not have to sign the Refugee Convention to ensure the rights of the Rohingya people. The framework is there in its Constitution and the treaties it has ratified. A rights-based approach to refugee justice in Bangladesh should begin with providing a temporary legal identity to the Rohingyas that allows them to report crimes, lodge complaints, and seek legal support without necessarily intending resettlement.

In a same vein, the crisis has an international law dimension as well. Bangladesh, although not a ratifying state to the 1951 Refugee Convention, is party to several core human rights treaties—including the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to fair trial to all individuals within the state's jurisdiction. According to Article 14 of the ICCPR, there is a right to fair and public hearing before a competent and independent tribunal, while Article 2 mandates the State to guarantee these rights to all people within their jurisdiction irrespective of their status. Similarly, General Comment No. 32 (UN Human Rights Committee) expounds that the State parties must respect the guarantees contained in Article 14 irrespective of citizenship status of the individual. In addition, the European Court of Human Rights in M.S.S. v. Belgium and Greece upheld the right and need of the refugees to effective remedy before national authority. While the binding nature of these principles on the non-signatories of the Refugee Convention is debatable, it is well settled that the provisions of ICCPR and other international instruments, is binding upon Bangladesh.

We also need to remember that statelessness does not deprive a person of his/her legal entitlement. In both domestic and international law justice is territorial and does not depend on nationality. Thus, the Penal Code (1860) and the Code of Criminal Procedure (1898) extend to the whole of Bangladesh irrespective of one's immigration status.

However, Rohingyas have no access to either of the two in any way. One reason is the continued role of Bangladesh in terming them as FDMNs instead of granting a formal refugee status. It prohibits their identification, recording and inclusion by the court, which creates a system in which rights are not just withheld but even nullified. Even worse, this gap has been exploited by the non-judicial actors, such as the Camp-in-Charges and majhis, who often resolve disputes through coercive or arbitrary means. As a result, the victims are silenced, and the abusers go unpunished. Women are the most vulnerable group who are susceptible to violence and exploitation in such a system.

Notably, Bangladeshi courts have time and again proved their commitment to ensure justice. In Md. Sadaqat Khan (Fakku) v. Chief Election Commissioner (2008), the High Court Division recognised the Bihari population—stateless at that time—as Bangladeshi citizens and their right to get enrolled in the voter list. Internationally, decisions such as A. v. Australia (UNHRC) emphasised that legal status cannot be used to justify arbitrary detention or denial of due process. Nonetheless, the policy is inert with lack of political will.

It should be noted that Bangladesh does not have to sign the Refugee Convention to ensure the rights of the Rohingya people. The framework is there in its Constitution and the treaties it has ratified.  A rights-based approach to refugee justice in Bangladesh should begin with providing a temporary legal identity to the Rohingyas that allows them to report crimes, lodge complaints, and seek legal support without necessarily intending resettlement. Secondly, legal aid desks should be set up inside the camps, operated by lawyers, paralegals and interpreters, in line with the Legal Aid Services Act, 2000. Thirdly, the State should be permitted to investigate serious criminal cases and have the case adjudicated in formal courts. In-camp courts administered by judicial magistrates may also be considered. Fourthly, legal support and court services in line with CEDAW commitments should be provided, addressing particular vulnerabilities of the women and girls. Finally, an independent panel of judges, lawyers, human rights representatives and civil society members should be there to oversee camp justice, case reviews and report abuse.

To conclude, it is not always the dominant demand of the Rohingyas to be citizens or be integrated into the Bangladeshi population. The Rohingyas want legal protection and safeguards primarily. Indeed, Bangladesh is only sabotaging itself by not allowing the Rohingyas to access and use the courts.

The writers are respectively Assistant Professor (Law), European University of Bangladesh and Assistant Professor (Law), Comilla University.